Focus Shifting In Terror Case Against Sheik

By WILLIAM GLABERSON

Published: January 20, 2005

Nearly two years ago, Attorney General John Ashcroft personally announced to Congress that federal prosecutors had filed terrorism-financing charges against a Yemeni sheik and his aide. Law enforcement officials indicated that the sheik, Mohammed Ali Hassan al-Moayad, had used a Brooklyn mosque to help funnel millions of dollars to Al Qaeda and had boasted that he had personally delivered $20 million to Osama bin Laden.

But as a federal judge in Brooklyn began questioning jurors yesterday for the scheduled start of testimony next week, pretrial filings suggest the prosecutors are pursuing a somewhat different, and even pared-down, case.

The allegations about Al Qaeda and ties to Mr. bin Laden have faded in importance to the case, the filings from lawyers on both sides have indicated. It now appears that the prosecutors will not even mention the supposed $20 million delivery to Mr. bin Laden.

The trial is expected to focus far more than had been expected on the sheik's ties to Hamas, a group that has been labeled a terrorist organization by the United States government, but that also has charitable operations. The connection to Hamas was mentioned when the charges were filed, but it drew far less attention.

Though it seems clear that the prosecutors still believe the sheik had Al Qaeda connections, some practical problems appear to be at play, stemming from the nettlesome art of fitting a complex case that was announced in a burst of publicity to the sober realities of the courtroom, and limiting the amount of proof they can introduce on the issue of Al Qaeda.

Hampering the prosecutors especially is the fact that their main informer, Mohamed Alanssi, a Yemeni man with a troubled history, set himself on fire outside the White House in November. That strange act drew attention to a history that included legal troubles and bad debts. It meant that he would be a troublesome witness, and the prosecutors have suggested that they may not call him. It was Mr. Alanssi who told federal agents about some of the allegations about the sheik's supposed ties to Al Qaeda, including the claim about the delivery of $20 million, and those claims may not be admissible if he does not testify.

The apparent change in emphasis has opened a door for the defense to argue that the case is an effort by prosecutors to make it appear that they have an Al Qaeda operative in the dock in Brooklyn who was a direct threat to the United States.

William H. Goodman, one of the sheik's lawyers, said in an interview this week that a case focusing on Hamas would not have drawn the worldwide attention the charges drew in March 2003.

''This is a bad case that should be dropped,'' Mr. Goodman said. ''They know it should be dropped because they started it because of his alleged connections to bin Laden and they now know he has none.'' Mr. Goodman said the sheik's ties to Hamas focused on charitable work, a contention the prosecutors are expected to dispute.

Robert Nardoza, a spokesman for the United States attorney's office in Brooklyn, declined to respond in detail to the defense lawyers' claims. But he said, ''We are confident that the necessity for prosecuting this case will be firmly established when the evidence is presented to the jury.''

The prosecutors have never said they are giving up their assertions that Sheik Moayad had close ties to Mr. bin Laden, and they say they will introduce evidence that the sheik sponsored Al Qaeda fighters. They will lean heavily on secretly recorded conversations in which they say the sheik described himself as Mr. bin Laden's sheik and repeatedly promised two government informers that any money they gave him would be used for jihad.

The prosecutors quoted the sheik as saying he supported all such terrorist organizations, ''Hamas, Al Qaeda, prisoners, mujahedeen and such.''

But, the defense often notes, transcripts of surreptitiously recorded conversations in Germany often seem to undercut the Justice Department's initial claims about the sheik's ties to Mr. bin Laden. Those claims seemed to leave open the possibility that the sheik's fund-raising might have contributed to the Sept. 11 attacks.

But a more ambiguous account has emerged in the legal filings. According to a government transcript, the sheik described some of his contacts with Mr. bin Laden as occurring in the 1980's, long ''before the crises'' of the Sept. 11 attacks, at a time when Mr. bin Laden was fighting in Afghanistan with support from the United States. Prosecutors went on to say in a brief that Sheik Moayad added that, after the Afghanistan jihad was over, ''they started feuding among themselves'' and Sheik Moayad ''distanced himself from them,'' evidently referring to Mr. bin Laden and his followers.

But when they focus on Hamas, the transcripts suggest, the prosecutors' strongest evidence may come from the recorded words of Sheik Moayad himself. ''I'm in touch with and have the knowledge of every aspect of Hamas's activities,'' the prosecutors quoted the sheik as saying in the secretly taped conversations in Germany, in January 2003.

Aside from the prosecutors' evident shift in emphasis, there have been other ways in which the outlines of the case have seemingly changed.

The focus on a Brooklyn Muslim center, Al Farooq mosque on Atlantic Avenue, was intense in the first days of the case. But the mosque has barely been mentioned during pretrial skirmishes and it is not clear how central the allegations about fund-raising there may be.

Jonathan Marks, the lawyer for Mohammed Mohsen Yahya Zayed, the sheik's assistant, who is to be tried with him, said in an interview that the prosecutors were stuck with a case that promised more than it could deliver.

If convicted of the charges of providing material support to terrorist organizations, the sheik, 56, could be sentenced to more than 60 years in prison. Mr. Zayed, 31, who is to be tried with the sheik, could face more than 30 years.

Although the prosecution's emphasis may be changing, the charges and potential penalties have not changed. Both men were extradited to Brooklyn from Germany, where they were arrested in 2003.

''It is very important for the Bush administration to show that they are winning the war on terrorism,'' Mr. Marks said. ''Attorney General Ashcroft billed this case as a case against a major financier of Al Qaeda. There is no evidence of that at all.''

Defense lawyers said that of some 270 potential jurors who filled out questionnaires, one-third, 90 people, said they could not be impartial because of the type of case it is.